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[2016] WASCA 30
General information, not legal advice.
Court of Appeal (WA)
2016-02-18
Buss JA
Original judgment source is linked above.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : CONOMY -v- MADEN [2016] WASCA 30
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Citation : CONOMY -v- MADEN [2015] WASC 179
Criminal law - Application for leave to appeal from Supreme Court's decision to refuse leave to appeal - Stalking - Turns on own facts
Criminal Appeals Act 2004 (WA), pt 2 div 3
Conomy v Maden [2015] WASC 179
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
1 The appellant and complainant met on a dating website and went out for six dates, the last of which took place on 12 December 2012. By 22 December 2012, the complainant had made it quite clear that she did not want the appellant to contact her again. Unfortunately, by this time the appellant was fixated on the complainant and appears to have been incapable of comprehending her message.
2 The appellant persisted in repeatedly sending emails, letters and text messages to the complainant. The complainant told the appellant to stop contacting her. She stopped responding to his communications. She sent an email message designed to make it look like she had closed her email account. She sent her brother to tell the appellant to leave her alone. She obtained an interim violence restraining order, which prohibited contact, on 13 February 2013. Despite all these steps having been taken, the appellant sent the complainant nine further email messages from 5 - 11 August 2013.
3 The appellant was charged with a 'stalking' offence contrary to s 338E(2) of the Criminal Code. The magistrate found that offence to be proven. He found that the appellant had repeatedly communicated with the complainant between 23 December 2012 and 12 August 2013. He found that the communications in August 2013 were in breach of the interim violence restraining order. The magistrate found that the manner of the communications could reasonably be expected to, and did in fact, cause fear and apprehension in the complainant. These findings established the elements of the 'stalking' offence with which the appellant was charged. The appellant was fined $3,000.
4 The appellant appealed to the Supreme Court against his conviction and sentence. The primary judge found that none of the appellant's many and detailed grounds of appeal had any reasonable prospect of success, and refused leave to appeal on all grounds.
5 The appellant now appeals to this court against the primary judge's refusal to grant leave in respect of each of his grounds of appeal against conviction. For the following reasons, the primary judge's decision was clearly correct, and none of the grounds which the appellant advances in this court have any reasonable prospect of success. Leave to appeal to this court must be refused on all grounds, and the appeal dismissed.
6 The prosecution notice alleged that, between 23 December 2012 and 12 August 2013, the appellant pursued the complainant in a manner that could reasonably have been expected to intimidate, and did in fact intimidate, the complainant. That was an offence against s 338E(2) of the Criminal Code, which provides:
A person who pursues another person in a manner that could reasonably be expected to intimidate, and that does in fact intimidate, that person or a third person is guilty of a simple offence.
7 By s 338E(3) of the Criminal Code, it is a defence to a charge under s 338E to prove that the accused person acted with lawful authority. In the present case, there has been no suggestion that the appellant acted with lawful authority.
8 Section 338D(1) of the Criminal Code provides that the term 'pursue' relevantly includes:
(a) to repeatedly communicate with the person, whether directly or indirectly and whether in words or otherwise;
...
(e) whether or not repeatedly, to do any of the foregoing in breach of a restraining order.
9 Section 338D(1) also relevantly defines 'intimidate' to include causing fear or apprehension in the person.
10 By s 338D(2)(a) of the Criminal Code, an accused is not to be regarded as having communicated with a person on a particular occasion if it is proved by or on behalf of the accused that on that occasion the accused did not intend to communicate with that person. With two exceptions noted below, there was no evidence to suggest that the appellant's communication with the complainant was other than intentional.
11 Therefore, in the circumstances of the present case the charge would be proven if the magistrate was satisfied of each of the following elements:
whether directly or indirectly and whether in words or otherwise.
12 The following account of the facts is drawn from the magistrate's findings, which were principally based on the complainant's evidence which he accepted, and from the documentary exhibits tendered at trial.
13 The appellant and the complainant, a single parent with a young child, met each other through an online dating site. They went on six dates in the second half of 2012, the last date occurring on 12 December 2012. The complainant considered the dates enjoyable but casual. The appellant considered them to be 'an item now'.
14 The complainant gave evidence that, on the last date, she mentioned that she was going to Albany for a big family Christmas.[1] On 17 December 2012, the appellant sent the complainant an email asking if he could come to Albany and meet her family. The complainant wrote back by email, sent at 10.30 am on 18 December 2012, saying she did not think she was ready for the appellant to meet her family.
15 The appellant responded with two emails sent at 12.30 pm and 4.07 pm on 18 December 2012. The second email included statements that 'if you still can't confidently regard me as your boyfriend then you never will', and 'I think it's best to go back to your original suggestion to stop seeing each other'.[2]
Well you've made your thoughts about us very clear here! As I said, if it's not serious now then it never will be and if you can't see that I'm possibly the perfect match for you and [your child], then you never will.
17 The complainant responded at 1.16 am on 19 December 2012, concluding that she was tired of arguing, and asking that they 'leave this on friendly terms ... and not get nasty'. There were two further short exchanges at 1.27 am and 1.28 am on 19 December 2012.
18 The appellant then sent a series of emails to the complainant at 1.53 am, 2.03 am, 2.13 am, 2.35 am, 4.29 am, 5.34 am, 12.30 pm, and 3.11 pm on 19 December 2012, during the course of which he indicated that the complainant had 'broken my heart'. The complainant sent an email at 6.14 pm on 19 December 2012 which said:
Goodbye Jerrod. Wishing you all the best and I hope you find what you're looking for.[5]
19 The appellant answered this email, saying:[6]
I did find what I was looking for but now I need to try again. People like you and me are a very rare breed but I guess it might happen again?
Goodbye :-)
20 The complainant responded by an email, sent at 7.00 pm, which indicated that, if the appellant had been patient, 'this didn't need to end' and that they were 'not suited'. The email concluded '[a]nyway, enough now. All the best.'[7]
21 The appellant again sent an email to the complainant at 9.35 pm on 19 December 2012. He set out his 'long term wants' for their relationship, including a 'permanent exclusive loving partnership' and a possible future child. He said the reason for 'this ending' was 'you can't give me any sign that we have moved past the casual dating stage and into an exclusive phase of our relationship'.[8]
22 The complainant responded by email sent at 11.24 pm on 19 December 2012, beginning with the statement:[9]
I promised myself that I wasn't going to reply to any more of these, but I can't let this one slide.
I hope you find your partner. But it's certainly not me.
I won't be replying to any more of your emails, so let's leave it here.
If false accusations make you feel better for being rejected, then good for you.
25 The appellant then sent a series of unanswered emails to the complainant at 12.39 am, 1.13 am, 1.36 am, 7.29 am, 7.35 am, 8.32 am, 9.24 am, 1.57 pm and 5.40 pm on 20 December 2012. In the last of these emails the appellant said that their infrequent dates were the 'root cause of all of our disagreements'. Further unanswered emails were sent at 12.14 pm, 1.55 pm and 5.06 pm on 21 December 2012 and 8.09 pm and 9.22 pm on 22 December 2012. The last of these emails asked whether the complainant could forgive the appellant and continue to see him.
26 The magistrate appreciated that the communications set out above preceded the period of the charge but were relevant as 'setting the scene to what was to come'.[12]
27 The complainant also gave evidence that the appellant was sending her a lot of text messages. At 9.10 pm on 22 December 2012, the complainant responded with a text message that said:[13]
28 The appellant sent two more text messages on 22 December 2012, the last of which promised no more contact.
29 By 23 December 2012, the complainant had made it quite clear that the relationship was not going to go any further and the appellant could not have been under any reasonable misunderstanding that she intended to have some sort of relationship with him. She had also made it clear that she did not want the appellant to contact her again. However, it appeared from the appellant's recorded interview with police on 14 August 2013 (recorded interview) that the appellant was incapable of comprehending this message.
Period from 23 December 2012 to 12 February 2013
30 At 1.26 am on 26 December 2012, the appellant sent the complainant a further email which asked whether there was 'any chance we could continue this unique relationship'.[14] At 12.12 pm on 30 December 2012, he sent a further email in which he asked for a second chance.[15] The complainant sent an email to the appellant at 4.37 pm on 30 December 2012, in which she said:[16]
Unfortunately, it really is over for me, so I think we should leave it there.
31 The appellant then sent unanswered emails at 4.50 pm, 5.59 pm, 7.24 pm, 10.10 pm and 10.28 pm on 30 December 2012, the last of which concluded '[n]o more contact from me for now'.
32 At 5.10 pm on 2 January 2013, the appellant sent the complainant an email which included a diagrammatic representation of how he regarded their relationship.
33 At 9.24 pm on 6 January 2013, the appellant sent an email attaching a Chinese astrology compatibility analysis which indicated that two people born on specified dates were a 'couple made in heaven'.[17] The text of the email said:
I know I promised no more contact but I found this very interesting and just couldn't resist.
34 The complainant responded at 9.30 pm on 6 January 2013 saying 'thanks' but noting that the appellant had the year of her birthday wrong.
35 At 10.56 pm on 7 January 2013, the appellant sent an email professing his love for the complainant, which was titled:[18]
What I love about [S] (and why I cant seem to stop sending her emails)
36 The appellant sent two further emails at 3.37 pm and 9.59 pm on 8 January 2013.[19] The first asked the complainant for an opportunity to explain why he was interested in her. The second indicated the appellant was wondering why the complainant was not responding to his emails.
37 By this time the complainant was desperate to rid herself of the appellant. On 9 January 2013, she tried to manufacture an email that looked like an automated system telling the appellant that she had changed her email address and that his emails could not be delivered to her. At 9.56 am the appellant sent the complainant a further email from a different email address saying:[20]
Sorry it came to that for you. Can you just let me know if you received my email listing the things I love about you. It really will help me move on if I know you received it.
38 There was evidence that, on about 9 January 2013, the complainant's brother telephoned the appellant and told him to leave the complainant alone.[21] The complainant gave evidence that, on 13 January 2013, she received a package in the mail, postmarked 11 January 2013, with an ornament of a duck and a note from the appellant inside.[22] There was also evidence that, on 15 January 2013, the complainant's father received a two page letter from the appellant,[23] in which the appellant said:[24]
This will be my final attempt at winning her back so please don't be worried about further contact from me.
The magistrate did not make any specific findings in relation to this evidence.
39 On around 16 January 2013, the complainant's brother went to the appellant's workplace and told the appellant to leave his sister alone.
40 On 19 January 2013, the complainant found a letter with a stamp and no postmark in the letter box. In the letter the appellant told the complainant never to send her brother around again, and threatened to seek a restraining order if it happened again. The letter also said:[25]
I understand you don't want a relationship now and its ok. If your interested in casual encounters of some sort then I am very open to that. Just let me know.
You really don't need to block me from mobile/email. Its not a crime to try to win you back. I've never threatened you in any way in fact I've reinforced that you did nothing wrong.
I hope to hear from you one day ... Despite this brother thing I still think your pretty awesome. I hope you liked the duck.
41 The complainant gave evidence that she telephoned the appellant on 19 January 2013 to tell him to leave her alone.[26] The magistrate was not prepared to make any findings about what was said in this telephone conversation.
42 The complainant did not hear from the appellant again until 1 February 2013. The complainant gave evidence that, from 1 to 12 February 2013, the appellant sent her 18 text messages, called her telephone number but did not leave a message, sent her a letter and sent her 12 red roses with a note asking for one more chance.[27]
43 The exhibits included 18 text messages sent to the complainant's telephone from the appellant's telephone on the following dates and times:[28]
44 The first message sent on 4 February 2013 was about the complainant but appears to have been sent to her by accident. The content of the other messages indicates that they were intended for the complainant. The general tenor of the text messages was that the appellant wanted to resume contact with the complainant. The last two text messages sent on 9 February 2013 read:
Do you want me to stop texting you?
I've run out of things to say anyway so the balls in your court.
45 The following day the appellant sent a text message saying
46 The text messages sent on 11 and 12 February 2013 read:
It was your intelligent mind that manufactured this 'terrible and desperate psycho' version of me. Its just fear clouding your head from something in the past. You just have to ignore it ... its up to you.
Well, somehow I have to move on even though the reason you give for breaking up isn't and wasn't ever tru.
47 The complainant also received a letter postmarked 6 February 2013. The letter began by saying:
I'm very sorry to hear that my text messages on the weekend upset you again.
After attempting to explain the appellant's conduct, the letter concluded:
I've included some of the last few emails I sent to you because going by the lack of reply I just don't know if you ever received them.
48 On 13 February 2013, the complainant sought and obtained an interim restraining order from the Magistrates Court at Mandurah. The order relevantly provided that the appellant must not:
Communicate or attempt to communicate with [the complainant] by any means whatsoever including SMS or text messages or other electronic means.
49 The interim restraining order was served on the appellant on 13 February 2013.
Evidence of contact between February and August 2013
50 The complainant gave evidence that she was given legal aid assistance in relation to her application for a violence restraining order. In around May 2013, the appellant was sending a lot of faxes to the complainant's solicitor, which the solicitor passed on to the complainant. The faxes mainly asked the solicitor to pass on messages to the complainant, asking if the complainant was interested in reconciling and still had feelings for the appellant, and saying that the appellant still had feelings for the complainant.[29] The appellant accepted that he sent these faxes to the complainant's solicitor in the recorded interview.[30]
51 There was also evidence that, on 27 July 2013, the appellant ordered a handbag from the complainant's online business. The complainant cancelled the order when she was notified of it.[31]
52 The magistrate did not make any findings of fact by reference to the above evidence.
53 The Perth Singles/Social Club planned a social event for 10 August 2013. The complainant bought a ticket for the event, which resulted in the group's web page showing her as an attendee, and her receiving automated emails from the social club when there was activity on the website.[32] The complainant gave evidence that she got an email to say that the appellant was attending the event, and called the police who attended her home to discuss the issue.[33]
54 While the police were in attendance, the complainant received an email from an account of the operators of a webpage called 'Meetup'. This email was a 'Meetup message' from the appellant, whose photograph also appeared in the message.
55 The email, sent at 5.35 pm on 5 August 2013, read:[34]
Singles Night
Hi [S], I hope this contact is ok and that your well. I'd like to attend the Perth Singles Function this Saturday, but it looks like you are going. Is there any way we can be civil and both attend or is that out of the question. I promise to keep my distance and not interact with you at all. If not I will cancel my spot.
I miss seeing you a lot!
Jerrod
56 At 6.58 pm on 5 August 2013 the complainant received a further 'Meetup message' from the appellant, which read:[35]
OOPS
[S] please dont report me. PLEASE. It was a brain fade. Also X-factor starting up again brought back a lot of feelings for you. Please dont punish me for having a heart.
57 A further 'Meetup message' from the appellant was sent to the complainant at 12.02 pm on 7 August 2013, which read:[36]
Thanks
Thanks for not reporting it [S] :). Well I assume you haven't because I haven't heard from the police. I'd love to hear from you and I definitely will not be reporting any contact. I'd love to start over again and have a good laugh at the last 6 months. I hope your lawyer has been passing on my messages. I will assume no response by end of today means you are not interested or cant.
Thanks again
Jerrod
58 Ten minutes later the following further message was sent:[37]
Oh, and if it's complicated or if your unsure then log onto RSVP and view my profile today. I'll see that you viewed me :). I feel like there's something happening behind the scenes but its only a hunch.
OK over to you now.
59 At 8.07 pm on 8 August 2013, the appellant sent a further 'Meetup message' to the complainant. The message read:[38]
Singles Night
Okay. I get the picture. Your not interested. I seem to have an optimism problem :(. I've cancelled my spot for singles night and going back to no contact. Thanks again for not reporting.
Jerrod
60 At 8.44 pm on 9 August 2013 the following further 'Meetup message' from the appellant read:[39]
Its ok [S]
[S] you didnt have to pull out of the event. I was happy not to go. Its ok that you want to date other people. I just wish you had said you were not attracted to me initially. It hurts a bit initially but it's something a guy can make sense of and move on. It would have prevented all the terrible stuff that's happened.
Anyway i'm going now since you've pulled out.
Jerrod
61 Two more 'Meetup messages' from the appellant were sent at 10.51 am and 1.11 pm on 10 August 2013, which read:[40]
Do you want me to stop?
[S], do you want me to stop contacting you again? I'll assume no response by 4pm today means you are ok with me contacting you. I wish you'd let me know what you feel. I just dont believe you had no feelings for me and its confusing because i've never heard it from you. I understand you also just didn't want a full on serious relationship but I didn't expect anything full on at that stage? In the future it would have been nice but I was happy to keep dating you casually. It really was a big misunderstanding.
So please just let me know if you want me to stop and I will.
Jerrod
Ignore last message
[S] please ignore last message. I'm not going to do this to myself again. You would message me if you wanted to communicate again. Hope you do one day because I'd love to hear from you even if you dont want to try dating again. I'm not going to report any contact if you do.
Have a great weekend!
Jerrod :-)
At 12.05 pm on 11 August 2013, the appellant sent a further 'Meetup Message' to the complainant. It was a long message titled 'Need to get some things off my chest'. The message concluded:[41]
OK no more contact from me (where have I heard that before ...). I think i've pushed the boundary a bit too far as it is so the balls in your court.
Like I said months ago. I really am just ready to chill out and have an amazewow time with you :)
Jerrod
62 The complainant did not reply to any of the above messages. The magistrate found all of the nine 'Meetup message' communications to have been in breach of the interim violence restraining order granted on 13 February 2013.
The complainant's reaction to the persistent contact
63 The complainant gave evidence that the persistent contact by the appellant, in the face of everything she had done to try and make him stop, made her apprehensive and afraid. The substance of the position stated at a large number of points in her evidence is best captured by the following passage of her cross-examination:[42]
[W]hat behaviour caused you to be afraid?---All of it. You've had absolutely no regard for my wishes whatsoever. You feel that I do not have the right to choose who I have in my life. You feel that my - my wishes and my thoughts have no meaning and you say that as long as I - as long as you choose that you want something to do with me then I have no say in the matter. And I've tried absolutely everything that I could possibly think of to tell you to stop. I've given you no mixed messages whatsoever. All I've ever done is try to think of ways to tell you to stop and you still won't, so how am I to know how this will all end if you - if you won't stop when I ask you to, then who's to say what you're going to do next. You visited my home. You've called me. You've involved other members of my family. I don't know you. I don't know if you're a dangerous person or not. I wouldn't have a clue. So that's what made me fear: is that you had - you just wouldn't stop when I told you to.
64 The magistrate's reasons indicate that he was satisfied beyond reasonable doubt of each of the three elements of the charged offence referred to above.
65 As to the element of repeated communication, or communication in breach of a restraining order, the magistrate found:[43]
In my view, and I so find, this is one of the clearest cases of pursuing a person imaginable. All the unanswered emails and SMSs after Christmas 2012 and prior to the violence restraining order being obtained and the nine email communications through the Meetup site after the violence restraining order make such finding inevitable.
66 The magistrate found that the appellant did send the emails and text messages, a number of which were in contravention of the violence restraining order.
67 As to the second element, the magistrate said that he believed 'emphatically that the complainant is a witness of truth', and found that she was 'intimidated as legally defined in s 338B'.[44]
68 The magistrate described the third element as involving:[45]
testing the proven evidence to determine whether or not the person in the position of the complainant could reasonably be expected to be intimidated by the pursuing behaviour of the accused.
69 As to this third element, the magistrate said:[46]
It is inevitable that this element is also proven beyond a reasonable doubt.
She had already told him the relationship - whatever it was - was over, and she totally stopped communicating with him after a certain point. She took out a restraining order against him, which, among other things - inter alia, in other words - required him to cease communicating with her. Prior to doing so, she had not been corresponding with him, but he had continued to pursue her.
He recommenced making contact after the violence restraining order, and after the court ordered him not to. And as I've already mentioned, he even wrote that he would assume no response by 4 pm on that day to his email, that he would take it as okay for him to contact her. This would, in my view, to any reasonable person, would be frightening, and any reasonable person would feel fear and apprehension that, when a restrained person was continuing to contact them after a period of abstinence, and in a persistent and a repetitive way.
70 The magistrate concluded his reasons for conviction by noting that it was not necessary to show that the appellant intended the result of his communications and that objectively the complainant 'had every basis to feel fear and apprehension'.
71 The case against the appellant was, as the magistrate recognised, exceptionally strong:
72 Therefore, the evidence and findings summarised above clearly supported the appellant's conviction of the offence with which he was charged.
73 Section 8(1) of the Criminal Appeals Act 2004 (WA) identifies the permissible grounds for appealing against the decision of a summary court. These grounds relevantly include that the summary court 'made an error of law or fact, or of both law and fact' or 'that there has been a miscarriage of justice'.
74 The appellant required leave to appeal for each ground of appeal from the Magistrates Court. Leave could not be granted unless the primary judge was satisfied that the ground had a reasonable prospect of succeeding.[48] Unless leave to appeal was granted on one or more grounds, the appeal was taken to be dismissed.[49]
75 The application for leave to appeal to the primary judge was ordered to be heard at the same time as the appeal.
76 Following five revisions, the appellant's seven grounds of appeal to the Supreme Court against conviction (Primary Grounds) extended over eight closely typed pages. Many of the grounds contain multiple assertions of error by the magistrate. Due to their length, the Primary Grounds are not usefully reproduced in full in these reasons.
77 The course of the trial and the proceedings in the primary appeal are accurately summarised in the decision of the primary judge.[50] It is unnecessary to repeat that summary here.
78 On 29 May 2015, the primary judge found that none of the appellant's grounds had any reasonable prospect of success. The appellant's application for leave to appeal in respect of each ground was dismissed, with the consequence that the appeal was dismissed.
79 The appellant now seeks leave to appeal against the primary judge's refusal to grant leave in respect of each of the grounds concerned with his conviction.[51] The grounds of appeal in this court relating to conviction (Appeal Grounds) extend over 30 closely typed pages, and assert numerous errors by the primary judge. Again, the length of the appellant's grounds means that they are not usefully reproduced in full in these reasons.
In essence, the appellant contends that each of the Primary Grounds had reasonable prospects of success and the primary judge erred in failing to so hold. The appellant also asserts that the primary judge's reasons for reaching each conclusion were inadequate. He complains that records of the Family Court of Western Australia were not produced for the purposes of the primary appeal, and that the primary judge erred in dismissing the appellant's application for a police running sheet to be adduced as additional evidence in the primary appeal.
81 We have considered the detail of the appellant's Primary Grounds and Appeal Grounds, and the detailed written submissions advanced in support of those grounds. Having done so, we have concluded, essentially for the reasons which he gave, that the primary judge correctly held that none of the Primary Grounds had any reasonable prospect of success. The primary judge gave adequate reasons which explained the basis for those conclusions, and correctly refused the application to adduce additional evidence. It follows from this review that leave to appeal to this court from the decision of the primary judge should be refused and the appeal dismissed.
Primary Grounds 1A and 2A/Appeal Grounds 1 and 3
83 These grounds challenge the magistrate's reliance on emails and text messages which were said to be 'unverified', 'unproven' and 'uncorroborated'. In the case of the 'Meetup messages', the appellant complains that 'no-one from the Meetup company was appearing to authenticate the evidence'.
84 So far as the grounds challenge the admissibility of the evidence, they are without merit. The complainant gave evidence that she sent or received the emails and text messages, and produced printed copies. Evidence of the emails was admissible in that form, and did not require further verification, proof or corroboration before being received by the magistrate. Contrary to the appellant's assertions, the admissibility of the emails tendered through the complainant did not depend on evidence of the operator of the email service or the 'Meetup' website also being adduced.
85 The grounds are also without merit insofar as they challenge the magistrate's finding that the appellant sent the text messages and emails. They were sent from an account or telephone used by the appellant. They purported to be written by the appellant, and the content of the emails in the broader factual context in which they were sent and received indicated that they were sent by the appellant. The appellant generally did not deny that he sent the emails and text messages in his evidence or recorded interview with police.[52] To the contrary, he admitted sending emails and text messages in both his evidence[53] and his recorded interview.[54] The appellant specifically admitted sending the emails on 7 January 2013[55] and 19 January 2013,[56] the text messages sent between 1 and 12 February 2013[57] and the nine 'Meetup messages' sent from 5 - 11 August 2013.[58] The conclusion that the appellant sent the emails and text messages is irresistible. The primary judge was clearly correct to find that the magistrate was entitled to conclude that the appellant sent the emails and text messages.
86 These grounds contend that the magistrate erred by treating communication before and after the interim violence restraining order was issued as 'one continuous period of communication' when approximately six months separated communication before and after the order was made.
87 As the primary judge noted, the magistrate accurately summarised the evidence and referred to a 'period of abstinence' in which the appellant did not contact the complainant. Given the evidence of contact between February and August 2013 referred to above, that was a generous finding by the magistrate in the appellant's favour.
88 In this court the appellant did not suggest that the magistrate made an error in relation to dates. The appellant described these grounds as focused on the fact that 'two completely separate periods of communication' were treated as one which caused a miscarriage of justice. We do not agree that the periods of communication were 'completely separate'. Further, even if they were treated separately, it would remain the case that the appellant repeatedly communicated with the complainant by 'Meetup messages' from 5 - 11 August 2013 in contravention of the interim violence restraining order. The first element of the charged offence would be established on that basis. These grounds are not arguable.
89 These grounds assert that the magistrate erred in finding that an unsigned and undated letter was sent by the appellant to the complainant.[59] As the primary judge noted, the appellant admitted sending the letter to the complainant in the recorded interview.[60] Contrary to the appellant's argument in this court, that evidence provided a proper basis for the magistrate's conclusion.
90 These grounds allege that the magistrate erred in treating the 'Meetup messages' as direct communications, when they were indirect communications not prohibited by the violence restraining order.
91 The magistrate did say that the 'Meetup messages' were direct communications with the complainant.[61] For the purposes of the trial, nothing turned on the distinction between a 'direct' and 'indirect' communication. Section 338D of the Criminal Code defines 'pursue' by reference to communication 'whether directly or indirectly'. The restraining order prohibits communication 'by any means whatsoever'.
92 In any event, the magistrate did not err in describing the communication by 'Meetup message' as direct. In the messages the appellant was speaking directly to the plaintiff. The fact that the appellant caused the messages to be generated from a Meetup email account, rather than his own account, does not affect that conclusion. The primary judge was correct to conclude that the Primary Ground did not arguably establish any error of fact or law.
93 These grounds assert an error of law by the magistrate in not allowing the appellant to 'part-tender' the transcript of the hearing on 13 February 2013. The appellant says that he wanted to tender the part of the transcript which he says showed the complainant to have misled the court, but the magistrate required the tender of the whole transcript and relied on it to find the content of the interim violence restraining order.
94 The appellant did attempt to tender the transcript, other than the last page which recorded the making of the order, and the magistrate refused to accept the tender of only part of the transcript.[62] As the primary judge noted, evidence of the making of the interim violence restraining order had already been received.[63] The terms of the order which the appellant had sought to exclude were relevant, and the tender of the entire transcript was required in order for the magistrate to understand what occurred on 13 February 2013. The magistrate did not err in refusing to accept only part of the transcript in these circumstances.
95 Primary Ground 5B alleges that the magistrate erred in treating the existence and breach of the interim violence restraining order as relevant to his findings as to all three elements of the offence. In this court the appellant says that the primary judge misconstrued this ground, when the primary judge said that the existence of the order was relevant by reason of the definition of 'pursue'. The appellant says the essence of his ground is a complaint that the existence and breach of the interim violence restraining order was treated as relevant to the second and third elements of the offence.
96 The magistrate was clearly correct to find the breach of the interim violence restraining order to be relevant in relation to all elements of the charged offence. That the appellant persisted in contacting the complainant, even after she obtained a court order prohibiting that contact, was a reason for the complainant's subjective fear and apprehension. That the appellant persisted after being served with a court order was also a circumstance that made the manner of communication one which could reasonably be expected to have caused fear and apprehension in the complainant. The essence of the ground which the appellant has identified is not reasonably arguable.
97 These grounds allege that the magistrate's reliance on breaches of the restraining order contravened s 63C(2) of the Restraining Orders Act 1997 (WA), which provides:
The making or varying of a restraining order does not, except as provided by this Act, affect the civil or criminal liability of a person bound by the order in respect of the same conduct as that out of which the application for the order arose.
98 The magistrate's findings were not inconsistent with this provision, the effect of which is that the making of the interim restraining order did not affect the appellant's criminal liability for the communications which gave rise to the order. The provision did not prevent the magistrate from taking account of the circumstance that the appellant persisted with contact even after being served with the interim restraining order which prohibited him from doing so. While the making of the order did not affect the appellant's criminal liability in respect of past conduct, it was capable of doing so in respect of future conduct.
99 These grounds essentially contend that the magistrate erred in finding that the interim violence restraining order was still in force when the 'Meetup messages' were sent. In this court the appellant described the essence of the ground as a contention that there was insufficient evidence to enable the magistrate to conclude that the interim order was still in force six months after it had been served.
100 The complainant gave evidence as to the making of the interim violence restraining order on 13 February 2013. The order did not specify its duration.
101 Under s 16 of the Restraining Orders Act, the interim order made on 13 February 2013 came into force when served on the appellant[64] and remained in force until a final order came into force, a final order hearing concluded without a final order being made, or the interim order was cancelled or expired.[65]
102 If the appellant did not return his endorsement copy of the interim order within 21 days after being served with the order, or returned the endorsement copy with an indication he did not object to the interim order becoming final, then the interim order would become a final order by force of the Restraining Orders Act.[66] As no period was specified in the interim order, such a final order would remain in force for two years from the date it came into force.[67]
103 If the respondent returned an endorsement copy which objected to the interim order becoming final, the registrar would fix a hearing and notify all parties of the hearing.[68] If a final order was made at a final order hearing it would remain in force for the period specified in the order or, if no period were specified, for two years from the date when the final order came into force.[69]
104 In the circumstances, the interim order made on 13 February 2013 would have remained in force during August 2013 unless the appellant had objected to the order and a final order hearing was completed, or an application to vary or cancel the interim order had been made and granted under the Act.
105 The magistrate could have been in no doubt that the interim order remained in force. The magistrate was aware from the court record that the hearing of the 'restraining order trial' was listed for hearing on 26 June 2014, and the applicant told the magistrate that 'I've been on an interim VRO for a year and a half'.[70] The appellant made an application to adjourn his trial on the basis of ongoing proceedings in relation to the application for a final restraining order,[71] and referred to his 'existing interim restraining order'.[72] It was implicit in the complainant's evidence and the content of the appellant's 'Meetup messages' that the interim order was still in force. The appellant made no suggestion to any witness in cross-examination that the interim order was not still in force. When the magistrate expressed his understanding that the restraining order was effectively still in force at the time of trial, the appellant responded by saying that 'an interim VRO has no weight of anything'.[73] The appellant did not suggest in either his evidence or his recorded interview with police that the order was not in force. To the contrary, he indicated his understanding that the interim order was still in force when he acknowledged that his conduct in August 2013 was in breach of the restraining order.[74] The appellant also referred to the still ongoing restraining order proceedings.[75] In his closing submissions the appellant did not suggest that the interim order was not in force. His complaint was rather that the order was in place, but had been in place for too long and should never have been in place.[76] In these circumstances it was open to the magistrate to be satisfied beyond reasonable doubt that the interim order made in February 2013 was still in force during August 2013.
106 It may also be noted that these grounds are inconsistent with Primary Ground 12 and Appeal Ground 11, so far as the latter grounds assert that the magistrate erred by dealing with the criminal proceedings before the violence restraining order proceedings were complete. There is no merit in that aspect of the latter grounds, as criminal proceedings would ordinarily be dealt with first and the continuation of proceedings under the Restraining Orders Act did not prevent the criminal proceedings from being completed. However, those latter grounds proceed from the premise, accepted by all parties throughout the trial, that the appellant's unresolved objection meant the interim violence order remained in force.
107 These grounds do not have a reasonable prospect of success.
Primary Grounds 9A and 9B/Appeal Grounds 9 and 10
108 These grounds allege a large number of factual errors by the magistrate. The primary judge correctly explained why the Primary Grounds had no reasonable prospect of success so far as they sought to establish factual error.
109 It appears from the Appeal Grounds and the submissions made to the primary judge that the focus of these grounds is a contention that the magistrate failed to properly deal with the objective element of the offence. In essence, the appellant seeks to establish that he could not reasonably have expected his actions to have intimidated a normal person. However, the question is not what the appellant could reasonably have expected. Rather it was whether the manner of his communication with the complainant could reasonably be expected to cause her fear or apprehension.
110 Primary ground 9B also asserted that the magistrate gave inordinate weight to the evidence of the complainant throughout the trial and in his decision. That aspect of the ground has not been arguably established. The magistrate was entitled to accept the complainant's evidence as credible and reliable. Her evidence was central to the questions of whether the communications occurred and whether the manner of those communications subjectively caused her fear and apprehension. The magistrate determined the third objective element of the offence by reference to what any reasonable person would expect, rather than by reference to the complainant's evidence.
111 The appellant has not established these grounds to have any reasonable prospect of success.
112 These grounds contend that the appellant did not receive a fair trial. There is no merit in that contention.
113 During the course of the trial the appellant tended to focus his questions on matters which were not significant to the issues which the magistrate was required to determine. The magistrate tried to encourage the appellant to focus on the critical issues, and properly ruled as inadmissible questions which were irrelevant. The magistrate's attempts, while they may have been perceived by the appellant as unreasonable interference, were directed to ensuring the appellant received a fair trial.
114 The specific matters raised in the particulars to this ground highlight the appellant's tendency to become distracted from the critical issues in the case. He refers to not being allowed to question the complainant about whether another person was stalking her, about a 'tweet' which the complainant had denied sending, and about the truth of the contents of an email the complainant sent to a third person. He also refers to not being allowed to tender a running sheet to show how a police officer regarded his conduct. The magistrate's refusal to allow the appellant to pursue, or further pursue, irrelevant issues of this kind did not result in any miscarriage of justice and was not in error.
115 These grounds criticise the magistrate's assessment of the complainant as a reliable witness, and allege that the magistrate refused to permit questions that 'would further have proved the unreliability of the witness'.
116 The appellant was allowed to extensively cross-examine the complainant over a number of days. The magistrate, having listened to the complainant's evidence over a number of days, was clearly entitled to conclude that the complainant was a reliable witness. The appellant's complaints about matters he says he was not able to further pursue again indicate his tendency to become distracted by, and fixated on, issues not significant to the question of his guilt of the charged offence. This includes the appellant's desire to challenge the complainant's evidence that they were never more than friends, whether she thought that the duck ornament she received on 13 February 2013 was meant for her or her child and the reasons she thought he joined the Meetup website. There is no basis for contending that the appellant was not given a fair opportunity to challenge the complainant's evidence, or otherwise denied a fair trial.
117 The paramount responsibility which a judicial officer presiding over a criminal trial owes to the community is ensuring that the accused person receives a fair trial. However, the judicial officer also owes other concurrent responsibilities to the community. In a case such as the present they include a responsibility to see that the accused does not utilise the proceedings as a vehicle for harassment of the alleged victim. The exercise of that responsibility will require vigilance in confining an accused person to asking questions which are relevant to the issues raised for the court's determination.
118 In the present case the appellant, appearing without a lawyer, was entitled to ask questions of the complainant which were relevant to the matters in issue at the trial. The magistrate had a responsibility to ensure that the appellant did not abuse that right by the manner and length of his cross-examination of the complainant. The magistrate cannot be criticised for intervening when the appellant asked the complainant irrelevant questions of a personal nature during the course of cross-examination.
120 These grounds allege that the magistrate erred 'by finding that the [appellant] had admitted pursuing the complainant in accordance with the legal definition of pursue when, in fact, the appellant admitted no such thing'.
121 The magistrate did not proceed on the basis of the accused's admission. Rather, the magistrate based his finding that the appellant pursued the complainant on an application of the statutory definition to the facts which he had found. The repeated communications which the magistrate identified clearly satisfied the statutory definition, and established the first element of the offence identified above. There is no merit in this ground.
122 These grounds were abandoned at the hearing of the application for leave to appeal.
123 This ground complains that the primary court did not obtain records from the Family Court of Western Australia which the appellant apprehends may have potentially assisted his case.
124 On 11 March 2015, the appellant wrote to the Principal Registrar of the court asking that the court request the Magistrates Court and the Family Court to provide records of proceedings in which the complainant was a party. At a directions hearing on 27 March 2015, Corboy J indicated that he would make an inquiry as to whether the Magistrates Court kept electronic records of proceedings to which the complainant was party. The appellant asked Corboy J if he could base his inquiries on his letter to the Principal Registrar of 11 March 2015. Corboy J said that he would have a look at that letter.[77]
125 Nothing in the above exchange could reasonably have justified the appellant thinking that the court would make any inquiry of the Family Court. If the appellant sought to adduce further evidence in the primary appeal, it was incumbent on him to obtain that material, whether by the issue of a subpoena or otherwise. Nor is there anything in the material before this court indicating that any relevant records may exist. This ground of appeal is also without merit.
126 This ground asserts that the primary judge erred in dismissing an application to adduce a police running sheet as further evidence in the primary appeal. In essence the appellant seeks to adduce the running sheet to show that a police officer did not regard his communications as intimidating, in order to show that the magistrate could not have been satisfied beyond reasonable doubt that the communications could reasonably be expected to cause fear or apprehension in the complainant.
127 The primary judge correctly dismissed this application. Whether the communications could reasonably be expected to cause fear or apprehension in the complainant was a matter for objective assessment of the court. The views of a police officer on that question were entirely irrelevant and inadmissible. There is no merit in this ground.
128 This ground alleges that the primary judge had regard to irrelevant considerations when he said:
When considering an appellate ground based on errors of fact, the appeal court must consider the evidence before the trial court and the reasons given by that court. The appeal court must recognise the limitations on its ability to review the evidence, including the disadvantage it has when compared to the trial court caused by it not being able to see the witnesses giving their evidence. Nevertheless, if after making proper allowance for the advantages of the trial court to assess the evidence, the appeal court concludes that an error has been made by the trial court, it has an obligation to correct that error [35].[78]
129 There was no error in this orthodox statement of principle, which was relevant to an application for leave to appeal in which the appellant challenged factual findings which the magistrate had made.
Appeal Grounds generally: adequacy of reasons
130 At various points in his Appeal Grounds, the appellant contends that the appeal to this court should be allowed on the basis that the primary judge's reasons were inadequate. There is no merit in those criticisms. The primary judge's reasons explain why he concluded that none of the Primary Grounds had any reasonable prospect of success. The basis for his decision is apparent from the reasons. There is no merit in this aspect of the Appeal Grounds.
131 For the above reasons, none of the appellant's grounds of appeal have any reasonable prospect of success. The application for leave to appeal and the appeal should be dismissed.
[21] ts 59 - 60 (23 June 2014); ts 70 (5 August 2014); recorded interview disc 1, 0.27, 0.44.
[23] ts 62 (23 June 2014); ts 54 - 55 (4 August 2014).
[30] Recorded interview disc 2, 0.0 - 0.07.
[31] ts 11 (23 June 2014); exhibit 75; recorded interview disc 2, 0.13 - 0.15.
[32] ts 113 (23 June 2014); exhibit 76.
[47] Recorded interview disc 2, 0.11 - 0.13.
[48] See Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473.
[49] Section 9 of the Criminal Appeals Act.
[50] Conomy v Maden [2015] WASC 179 [3] - [27].
[51] The appeal is made under s 16(2)(a) of the Criminal Appeals Act, with the requirement for leave in s 9 of the Act being incorporated by s 18 of the Act.
[52] At ts 123 - 124 (5 August 2014) the appellant refused to accept the prosecutor's proposition that the exhibits were an accurate record of the text message and email communication between him and the complainant. However, this response seems to be based on the appellant's view that he couldn't say how many emails went back and forth rather than a denial that he sent any of the tendered emails. There was a limited denial in relation to some text messages at ts 126 (5 August 2014).
[53] ts 81 - 83, 94 - 96, 110 - 111, 113 (5 August 2014).
[54] Recorded interview disc 1, 0.06 - 0.09, 0.13 - 0.14, 0.15, 0.20, 0.22, 0.36, 0.41 - 0.43.
[55] Exhibit 52, which the appellant admitted sending in recorded interview disc 1, 0.55.
[56] Exhibit 55, which the appellant admitted sending in recorded interview disc 1, 0.44, 0.58.
[57] Exhibit 60 - 68, which the appellant admitted sending in recorded interview disc 1, 1.04 - 1.31.
[58] Exhibit 77 - 85, which the appellant admitted sending in recorded interview disc 2, 0.19 - 0.23.
[60] Recorded interview disc 1, 0.28 - 0.29.
[62] ts 168 - 169 (24 June 2014). The appellant also tendered an unmarked copy of the transcript (exhibit 100) at ts 27 (4 August 2014).
[64] Section 16(1) of the Restraining Orders Act.
[65] Section 16(4) of the Restraining Orders Act.
[66] Section 31, s 32(1) and s 32(2) of the Restraining Orders Act.
[67] Section 16(5)(c) of the Restraining Orders Act.
[68] Section 33(1) of the Restraining Orders Act.
[69] Section 16(5)(a) of the Restraining Orders Act.
[74] Recorded interview disc 1, 0.15, 0.20; disc 2, 0.15, 0.22, 0.45, 0.46.
[78] Fox v Percy [2003] HCA 22; (2003) 214 CLR 118.
Conomy
Maden
(2003) 214 CLR 118
(2005) 30 WAR 473